1. The facts of the case which have given rise to this reference are set out in extenso in the judgment of the Additional Sessions Judge of Benares, dated 16th September 1929, and require no recapitulation.
2. Luttur Balai, Ram Nath and Raghu were on their trial before a Special Magistrate of Jaunpur, under Section 324, I.P.C. During the progress of the trial one Luttur had applied to the Magistrate under Section 526(8), Criminal P. C, for stay of proceedings to enable him to move the High Court for the transfer of his case. The application was.granted, and the case was adjourned. Luttur did not apply to the High Court for the transfer of the case. He applied to the District Magistrate for a transfer, but his application was rejected, and he submitted to the order.
3. On 17th May 1929, Balai made a similar application, but his application was refused. A second application was made by Balai, on 18th May 1929, but this application shared the same fate. Between 18th May, and 23rd May 1929, there were holidays in the lower Courts and also in the High Court consequent upon the Id-uz-Zoha. On 23rd May 1929, Balai presented an application in the Court of the Magistrate stating that he had been to Allahabad to instruct his counsel to make the necessary application under Section 526, Criminal P. C, for the transfer of his case and that the application was going to be made immediately upon the opening of the High Court. He prayed further for the adjournment of the case till the matter had been finally disposed of by the High Court. This application was dismissed. Between 17th May 1929, and the date of the actual decision of this case, the proceedings in the Court of the Magistrate continued. The proceedings terminated in the conviction of all the four accused persons upon whom non-bailable sentences were passed. They moved the learned Additional Sessions Judge of Benares for the revision of the conviction, and the matter has been submitted to this Court under Section 438 Criminal P.C.
4. Under Section 526(8) where an accused notifies to the Court before which the case is pending his intention to make an application under this section, the Court is bound to adjourn the case for such a period as will afford a reasonable time for an application to be made to the High Court, and an order obtained thereon. Section 526(8) embodies a statutory mandate, which the Courts below ought to respect and obey. There has been a catena of decisions of this Court and of other High Courts in favour of the view that the rule referred to above is imperative. Some of the later decisions may be referred to. In re, Sartaj Singh v. Emperor A.I.R. 1924 All. 533, Sulaiman, J, held, that after the application for transfer had been made to a Magistrate, the trying Magistrate should not have recorded any evidence at all but should have adjourned the case at once. In Walidad Khan v. Emperor : AIR1928All660 Dalai, J., held that the provisions of Section 526(8), Criminal P. C, were mandatory, and must be enforced. In Bacridi v. Emperor A.I.R. 1923 All. 268, Walsh and Banerji, JJ., held that where an application under Section 526(8), was presented, it was the duty of the Court to stay all judicial proceedings.
5. The learned Magistrate has submitted an explanation, which does not seem to me to be at all satisfactory. Where a rule of law is absolute in terms the said rule has got to be observed and duly given effect to, and it is no province of a Magistrate to deviate from the said rule upon any grounds of expediency. Fur ther, it does not appear that, where Luttur made the application under Section 526(8), he was doing so on behalf of himself and the other three other co-accused. The Magistrate might well have asked the other three accused persons at the time as to whether they too wanted to avail themselves of the adjournment to make an application to the High Court jointly with Luttur or severally on their individual account. This was not done. In refusing the applications, dated 17th and 18th May 1929, the Magistrate has acted in contravention of an absolute and imperative enactment. The progress of the case in his Court between 17th May 1929, and the date, when the application of Balai was finally rejected by the High Court, was illegal, and not a mere irregularity cured by Section 537, Criminal P.C.
6. I accept the recommendation of the learned Additional Sessions Judge, set aside the conviction and sentence of the applicants and direct a retrial. The witnesses examined between 17th May 1929, and the date, when the final order was passed by this Court, on the application of Luttur, should be recalled, and an opportunity afforded to the accused persons to cross-examine them. Let it be distinctly understood that no aspersion is cast upon the trying Magistrate in any shape or form. There can be no-doubt that the said Magistrate will deal with the case fairly and justly. In view of all the circumstances of the case, I do not think that I should make an order of transfer of this case from the Court of Mr. Baqar Hussain to that of any other Magistrate. Let the papers be returned.